A couple of years ago, I was working with a condominium community comprised of 150 units. The property, a traditional mid-rise complex, had shared hallways and common areas.It came to our attention that several unit owners were being impacted by second-hand smoke resulting from unit owners smoking in their units. Given the close proximity and structure of the complex, non-smokers were being bothered by the odor of the smoke and concerned about the potential health risks.
First Step: Getting a Sense of the Community Feeling
As the complaints mounted, the condominium board of directors realized it had a fiduciary responsibility to deal with the growing problem. The first step was to conduct an informal survey to see if there was an interest in making the complex a smoke-free community. Most condos restrict smoking in common areas where the board of directors has the ability to dictate rules and regulations. In Massachusetts the board of directors does not have the authority to regulate behavior within the units and this type of change would have to be implemented as an amendment to the master deed. All homeowners would have to be involved in changing the amendment which would take a 75% majority to change.
Survey Drafted & Distributed
Prior to engaging in the legal legwork of putting together an amendment, the board of directors wanted to get a sense of the community’s feelings about creating an amendment that would prohibit smoking in the units. A survey was drafted and distributed with the results showing it was worthwhile to pursue making the entire complex smoke free.
Next Step: Drafting an Amendment
We then worked with the property’s attorney to draft an amendment. If the amendment passed, it would not be implemented for six months. In advance of distributing the amendment, we held three meetings to answer any questions and allow the residents to air their concerns. The meetings illuminated that the issue was quite controversial and went beyond the issue of prohibiting smoking, but raised concerns about residents’ rights. One board member commented, “Where there’s smoke, there’s ire!” Ultimately we did not have enough participation to pass the amendment.
Revisiting the Issue
After about a year, a group of homeowners raised the issue again. Citing health concern, the cadre of residents raised their voices louder. The board of directors dusted off the amendment and distributed it to homeowners. Due to increased lobbying by homeowners, there was more participation and the amendment passed.
Final Step: After 6-Month Delay, Amendment Goes Into Effect
After a six month delay, the amendment went into effect and the complex has been smoke free for over two years. Occasionally there is a violation, but for the most part the community has embraced the new policy. As more condos are developed, the smoke free mandate has become a regular part of the original by-laws.
Now that the state is permitting the legalization of medical marijuana, many communities will have a new issue to examine…